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2000 DIGILAW 286 (PAT)

Bijendra Narain Sinha v. State Of Bihar

2000-02-18

RADHA MOHAN PRASAD

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Judgment 1. In this writ petition, the prayer is to direct the State of Bihar, Vice-Chancellor and Registrar of Bhagalpur University (respondents no. 1 to 3 respectively) to transfer pro rata service benefits for the period of services rendered by the petitioner in Bhagalpur University from 7.2.1962 to 21.1.1979 to the University of Hyderabad for the payment of pensionary benefits accordingly to him. 2. In short, the case of the petitioner is that initially he joined Bhagalpur University service on 7.2.1962 and was posted as Lecturer in the Department of Hindi in T.N.B. College, Bhagalpur. On 1.5.1970 he was transferred to Post Graduate Department of Hindi and on 13.1.1978 was appointed as Reader in Hindi, subject to concurrence of the Bihar Public Service Commission. It is claimed by the petitioner that an application for the post of Reader in Hindi in the Central University of Hyderabad through proper channel submitted by him was forwarded by the Registrar, Bhagalpur University on 23.8.1978, vide Annexure 1. The petitioner was selected by the Central University of Hyderabad for appointment as Reader in Hindi and on receipt of the offer of appointment, he requested the authorities of Bhagalpur University to relieve him for joining the new assignment at Hyderabad and also for allowing him to hold lien in Bhagalpur University. The University allowed extraordinary leave (without pay) and the petitioner was relieved on 19.1.1979, whereafter he joined the University of Hyderabad on 22.1.1979. Subsequently, Bhagalpur University granted him lien after obtaining approval of Syndicate, vide Notification no. 92/79 dated 23.7.1979, a photo copy whereof has been annexed as Annexure 2. On expiry of extraordinary leave, the petitioner applied to the University of Bhagalpur to extend his lien. 3. On 26.5.1986 the petitioner sent him formal letter of resignation which was intended for termination of lien, and the same was accepted as per the decision of the Syndicate with effect from 22nd January, 1979, vide Notification no. 99/86 dated 26.9.1986 (Annexure 3). The petitioner thereafter continued in the service of Central University of Hyderabad and finally on 30th November, 1996 he superannuated as Professor from the said University. On 18.9.1991 the petitioner submitted representation to the Registrar of Bhagalpur University requesting for transfer of his past service benefits for the purposes of retirement benefits. 99/86 dated 26.9.1986 (Annexure 3). The petitioner thereafter continued in the service of Central University of Hyderabad and finally on 30th November, 1996 he superannuated as Professor from the said University. On 18.9.1991 the petitioner submitted representation to the Registrar of Bhagalpur University requesting for transfer of his past service benefits for the purposes of retirement benefits. It is claimed that he also gave an undertaking that he is prepared to refund the C.P.F. amount contributed by the University of Bhagalpur. He also claims to have sent several reminders and that the Registrar, Central University of Hyderabad also requested the Registrar, Bhagalpur University to send certain information, but there was no positive response which necessitated in filing the present writ petition for redressal of his aforesaid grievance. 4. A counter affidavit has been filed on behalf of the Vice-Chancellor and Registrar of the University (respondents no. 2 and 3 respectively) in which it is stated that the petitioner is not entitled for any relief sought for in the present writ petition. It is stated that the petitioner had resigned from the service of Bhagalpur University and his resignation was accepted by the Syndicate with effect from 22.1.1979 when only contributory provident fund scheme was available to the employees, which has already been paid to the petitioner. According to the said respondents, the University has nothing to do with his past service. With respect to extension of leave sought for by the petitioner on 19.3.1982, it is stated that he was asked to apply through his employer, but when the same was not received, no further extension of lien was granted to him. 5. Further case of the University in the said counter affidavit is that the pension scheme came into effect with promulgation of relevant statutes in 1980. Though it was made effective with effect from 1.4.1972, but it provided for option to be exercised by the employees who were in service on 1.4.1972 or joined service after that date and were in the service on the date of introduction of the scheme in 1980. On the date of promulgation of the statutes, the petitioner was not an employee of the University after his resignation has been accepted by the Syndicate. As such, he was not entitled to pension and other benefits available under the statute. On the date of promulgation of the statutes, the petitioner was not an employee of the University after his resignation has been accepted by the Syndicate. As such, he was not entitled to pension and other benefits available under the statute. It is stated that the petitioner had no pro rata service benefit due with the Bhagalpur University which could be transferred to the University of Hyderabad except the amount of contributory provident fund which has already been paid. It is also stated that the claim of the petitioner was rejected by the Bhagalpur University on 31.7.1996 itself, the validity of which has not been challenged even in the present writ petition, although it was filed after a great delay. With respect to the claim relating to encashment of leave, it is stated that question did not arise as the petitioner had resigned from the service of Bhagalpur University and the statute relevant to it came into force in 1980. It is also stated that the Government circular relied upon has got no application to the facts of the present case more so because the University is an autonomous corporate body and the service of its employee is regulated and governed under the provisions of the Act and the Statutes made thereunder. The respondent University has nothing to do with the circular issued by the Government of India unless it is directed specially for implementation under the authority of any law in force. 6. Mr. Jagdanand, learned counsel appearing for the petitioner submitted that as per sub-clause (vii) of clause 14 of the Statutes for the grant of retirement benefits to employees of the Universities, only dismissal or removal from service will entail forfeiture of all past service for purpose of grant of pension/gratuity and not in the case of resignation. He also submitted that as per the decision with respect to mobility of personnel between Central Government/Autonomous Bodies and State Government/Autonomous Bodies and vice versa, contained An-nexure 4, and the office memorandum relating to the same for counting of service for pension issued by the Government of India on 29th August, 1984, contained in Annexure 13, the Government/autonomous body are to discharge their pension liability by paying in lumpsum as a one-time payment. The pro-rata pension/service gratuity/terminal gratuity and DCRG for the service upto the date of absorption in the autonomous body/Government, as the case may be, lumpsum amount of the pro-rata position will be determined with reference to commutation table laid down in CCS (Commutation of Pension) Rules, 1981, as amended from time to time. According to him, the petitioners service was absorbed in the Central University of Hyderabad with the approval of the Bhagalpur University and, as such, he is entitled to get the benefit of past service. In support of his contention, learned counsel for the petitioner placed reliance on the decisions of the Apex Court as well as of this Court in the case of State of Bihar vs. B.S. Mathur, reported in 1996(1) PLJR (SC)69 and in the case of Tapan Kumar Chatterjee vs. State of Bihar, reported in 1998(1) PLJR 707. 7. Learned counsel for the University, on the other hand, submitted that the statute for the grant of retirement benefits was promulgated on 18.11.1980 whereas the petitioners resignation was accepted with effect from a date before the said date. As such, the provision of the said statute is not at all relevant/applicable in the case of the petitioner. He submitted that the said statute though came into force with effect from 1.4.1972, but under its clause 4, the employees who were to exercise their option for adoption of pension scheme under the said statute were those who joined service in the University/Constituent Colleges before the 1st April, 1978 and are still in service or have retired on or after 1.4.1972 and are alive on the date of its notification. Admittedly, it is neither a case where the petitioner was still in service on the date of notification nor that he had retired on or after 1.4.1972. It is a case of resignation which is governed by the provisions contained in clause 12 of the General Conditions of Service of the Employees of the Universities. According to him, clause 12(1) clearly provides that resignation from service entails forfeiture of past service and, in the instant case, the very notification dated 26.9.1986, contained in Annexure 3, shows that the resignation of the petitioner was accepted with effect from 22nd January, 1979 unconditionally, the validity of which was never challenged by the petitioner. According to him, clause 12(1) clearly provides that resignation from service entails forfeiture of past service and, in the instant case, the very notification dated 26.9.1986, contained in Annexure 3, shows that the resignation of the petitioner was accepted with effect from 22nd January, 1979 unconditionally, the validity of which was never challenged by the petitioner. It was also submitted by him that the service of the petitioner was not transferred/absorbed on transfer to the Central University of Hyderabad and, as such, in any view of the matter, the circulars of Govt. of India contained in An-nexures 4 and 13 are not at all applicable in the present case. According to him, the two decisions relied upon by the learned counsel for the petitioner in the case of Tapan Kumar Chatterjee vs. State of Bihar (supra) and in the case of State of Bihar vs. B.S. Mathur (supra) are of no avail in the facts and circumstances of the present case. 8. This Court finds substance in the submission of the learned counsel for the University. None of the said two decisions are of any avail in the facts and circumstances of the present case, which are squarely covered by the provisions contained in the statutes, referred to above. Plain reading of clause 12 of General Conditions of Service shows that resignation from service, or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service. Sub-clause (2) provides that any authority, which on revision of appeal, reverse an order dismissing or removing a University servant, may declare that his past service will count. Clause 13 provides that an interruption in the service of a University servant entails forfeiture of his past service, except in the following cases : (a) Authorised leave of absence; (b) Unauthorised absence in continuation of authorised leave of absence so long as the office of the absentee is not substantively filled. If his office is substantively filled, the past service of absence will be forfeited; (c) Suspension immediately followed by re-instatement, which need not be to the same office; (d) Abolition of office or loss of appointment owing to reduction of establishment; (e) Time occupied in transit from one appointment to another, provided that the University servant is transferred under the order of the competent authority. 9. 9. Admittedly, the case of the petitioner is not covered by any of the aforesaid exceptions. Thus, on harmonious construction, of the said two provisions/contained in clauses 12 and 13, it is clear that except that in the case of the aforesaid exceptions, interruption in the service of a University servant entails forfeiture of his past service which obviously will include resignation from service also or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination. Moreover, it has rightly been submitted on behalf of the University that the petitioner cannot get the benefit of past service for commutation of pension as per the statutes for grant of retirement benefits as the said statute is not applicable in his case as it is not his case that he retired from the service of the University on or after 1.4.1972 and that he had exercised the option under clause 4 within the prescribed time. 10. In the case of Tapan Kumar Chatterjee vs. State of Bihar (supra) the learned single Judge has not considered the scope of clause 13 of the General Conditions of Service which specifically deals with forfeiture of past service on interruption in the service of a University servant. The principle decided by the Apex Court in the case of State of Bihar vs. B.S. Mathur (supra) is also not applicable in the present case. In the said case the question was as to whether the Government servants, who were permitted by the State Government to resign and join University service, would be entitled for pension for the service rendered under the Government. The said Government servants were already sent on deputation to Rajendra Agricultural University. Under such circumstances, on consideration of the relevant provisions of the Rajendra Agricultural University Act and the Rules and the provisions of the Bihar Pension Rules and the Bihar Service Code, the Apex Court held that the State Government and the University would be liable to pay their share of the amount of pension payable, which is to be calculated in terms of rule 161(b), of the Bihar Pension Rules. In the said case, the Government servant on receipt of the offer of appointment has not resigned to join the new assignment. 11. In the said case, the Government servant on receipt of the offer of appointment has not resigned to join the new assignment. 11. Moreover, this Court finds substance in the submission of the learned counsel for the University that the provisions of the Statute for the grant of retirement benefits promulgated on 18.11.1980 is not applicable in the case of the petitioner who had already ceased to be in the service of the University on the date of notification nor he retired or on after 1.4.1972. It is a case of resignation which is governed by the provisions contained in clauses 12 and 13 of the General Conditions of Service of the Employees of the Universities. 12. Accordingly, this Court does not find any merit in the writ petition and the same is, thus, dismissed, but without costs.